Delhi District Court
After Being Called Upon vs State Of on 12 April, 2018
IN THE COURT OF SH. VINAY SINGHAL, POLCV:
DWARKA COURTS: DELHI
NEW ID NO : 707616
In the matter of :
Sh. Raj Kumar Luthra
S/O Sh. Ganga Bishan
C/o Rashtriya General Mazdoor Union,
F35, Karampura, New Delhi110015. ...workman
Versus
M/s Bright International,
WZ10, Phase I,
Om Vihar, Uttam Nagar,
New Delhi110059 ....Management
Date of Institution : 19.12.1998
Date of pronouncement : 12.04.2018
A W A R D
Though a joint reference stand received with respect to eight
workmen but on account of different facts and different evidence led
with respect to the contesting parties, the court deems it fit to deal with
the reference of each of the workmen by way of separate judgment.
Furthermore, out of the said eight workmen, the workmen
namely Dinesh Tiwari, Sanjay, Samsul and Nand Kumar have not filed
the claim and accordingly, a No Dispute Award dated 26.07.2005 stand
passed against them by the Ld. Predecessor (though the names of the
above said four workmen have been wrongly mentioned as Raj Kumar
ID No. 707616 1/40
Luthra, Amar Nath, Vishnu Dutt and Raj Kumar in para no.16 of the
said award but a perusal of the entire award and especially para no.5 of
the said award makes it clear that the names mentioned in para no.16 is
an inadvertent error containing the wrong names of the workmen
against whom the said No Dispute Award was intended and
accordingly, by invoking the provisions of Section 151 r/w Section 152
CPC, by virtue of the present order the said inadvertent error stand
rectified and it is hereby ordered that in the award dated 26.07.2005,
the names of the workmen against whom a No Dispute Award is
passed shall be read as Dinesh Tiwari, Sanjay, Samsul and Nand
Kumar).
Furthermore, with respect to the workmen Raj Kumar Luthra,
Amar Nath, Vishnu Dutt and Raj Kumar, by virtue of the very same
award dated 26.07.2005 reference was answered in their favour.
However, on an application moved on behalf of the management, the
award with respect to these four workmen stand set aside vide order
dated 31.07.2006.
The Dy. Labour Commissioner, Govt of NCT, Delhi while
exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute
Act (hereinafter refer to as the Act) r/w notification No.F24(5322)/98
Lab/4088488 dated 07.12.1998 has sent the following reference to this
court for adjudication :
"Whether Sh. Raj Kumar Luthra has abandoned the service or his
services have been terminated illegally and/or unjustifiably by the
ID No. 707616 2/40
management; and if so, to what relief is he entitled and what directions are
necessary in this respect"?
PARTA
REFERENCE/CLAIM
1.After being called upon, the workman filed statement of claim.
2. As per the workman he was employed with the management for the last 04 years counting backward from 23.05.1998 i.e. since 24.05.1994, on the post of Field Man at a monthly salary of Rs. 2,000/.
3. It is claimed that the management closed the factory without any notice on 23.05.1998 but later on denied the said closure and also refused to take the workman on duty.
4. A demand letter dated 24.05.1998 claiming reinstatement and the allowances was sent by registered post but the same was returned unserved.
5. The workman filed a written complaint with the concerned Labour Commissioner who appointed a Labour Inspector to visit the management office but in vain, who filed his report dated 13.07.1998 in this respect.
6. The workman also claimed that since the date of his termination, he is unemployed.
ID No. 707616 3/40PARTB MANAGEMENT'S STAND/REPLY
7. In the original WS, by virtue of preliminary objection, it is claimed by the management that they have not been supplied with the Annexure "A" containing the names of the workmen, as filed by workman along with statement of claim and accordingly, they filed the WS with respect to the workmen as appearing in the original reference order by virtue of which the present workman Raj Kumar Luthra is at Sl. No.1.
8. An amended WS also filed thereon but as the same has not changed the stand of the management with respect to the present workman, the same is not discussed herein.
9. The management denied that there was any relationship of employer and employee between the parties.
10. The management admitted that the Labour Inspector visited the premises and also noted down their names. It is also denied that the management ever closed down its factory or terminated the services of any workmen including the present workman.
PARTC ISSUES
11. From the pleading of the parties the following issues were framed vide order dated 10.10.2006 : ID No. 707616 4/40
a) Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 and 7 of annexure 'A' of the statement of claim ? OPW
b) Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
c) Relief in terms of reference.
PARTD WORKMAN'S EVIDENCE
12. In support of his claim workman examined himself as WW1 and deposed along the lines of statement of claim and also proved on record the following document :
a) Ex WW1/1 Complaint to the Labour Inspector dated 25.05.1998.
b) ExWW1/2 Complaint dated 08.05.1998 addressed to the SHO PS Vikas Puri.
c) ExWW1/3 & 3A Complaints dated 08.05.1998 and 09.05.1998 addressed to the ALC.
d) ExWW1/4 Report of Labour Inspector.
e) ExWW1/5 Demand notice dated 24.05.1998.
f) ExWW1/6 Returned envelope.
g) ExWW1/7 to 1/20 Employment proof of the workman.
ID No. 707616 5/4013. During the course of cross examination, it has come on record that the year of birth of the workman is 1934.
14. It has also come on record that he lastly visited the management on 23.05.1994 and not thereafter.
15. He also admitted that as far as the documents relied upon by the him as Ex.WW1/1 to Ex.WW1/20 are concerned, he is not the executor of the same and also the fact that originals of the same neither shown to the court nor placed on record.
PARTE MANAGEMENT EVIDENCE
16. As far as the management is concerned, as it has already taken a stand to the effect that the present workman was never their employee, though it has led the evidence with respect to other workmen qua whom separate award is being passed, the said evidence having no relevance qua the present workman is not being discussed.
17. Furthermore, the management witness MW1 was also not cross examined by the workman by even putting a suggestion that the present workman was their employee.
PARTF FINDINGS/CONCLUSION
18. After considering the claim, reply, document and the evidence ID No. 707616 6/40 led on record, the issue wise decision of the court is as under : ISSUE No.1 : Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 and 7 of annexure 'A' of the statement of claim ? OPW
19. As far as the question of proving the relationship of employer and employee between the parties is concerned, when the same is being denied by the management, the law is very well settled by the Hon'ble Supreme Court of India in the matter of "Workmen of Niligiri Coop. Mkt Society Ltd. Vs State of Tamilnadu (2004) 3 SCC 514" by holding that the onus of proving the relationship of employer employee when the same is denied by the management is always upon the workman.
20. The said judgment is also upheld in a catena of judgments and followed by various High Courts including Delhi High Court like in the matter of Gopal Vs BSNL LPA No. 408/2013 decided on 03.07.2014.
21. Now in the present case also the management has denied the said relationship between the parties and in such a situation the present issue was framed calling upon the workman to prove the said relationship.
22. Before proceeding further, it is also pertinent to mention that the said issues which were framed though contain the wording "annexure 'A' of the statement of claim" but in fact they refer ID No. 707616 7/40 to the serial number as per the reference order and be read for all practical purpose as such as they also stand corrected under the provisions of Section 151 and 152 of CPC.
23. As already discussed in Part D above, the year of birth of the present workman is 1934 and even if it is assumed that his claim of being employed with the management in the year 1994 is true, in 1994 his age was 60 years and accordingly, this very fact goes against the workman as, as per the model standing order the age of retirement of a workman is 58 years and in such circumstances there cannot be any question of his being employed with the management at the age of 60 years.
24. Furthermore, even as per the admission of the workman during the course of his cross examination, he lastly visited the management on 23.05.1994 and if it is so, the question of his termination on 23.05.1998 could not have arisen.
25. The documents relied upon by the workman as Ex.WW1/1 to Ex.WW1/20 are in fact of no relevance firstly on the ground that they are photostat copies and despite being marked as exhibit, stand not proved as per the provisions of Indian Evidence Act as neither their originals were shown to be in existence nor any secondary evidence qua them stand led by the workman coupled with the fact that even otherwise as far as the documents Ex.WW1/2 to 1/4 and Ex.WW1/7 to 1/20 are concerned, the same are not in favour of the present workman and hence, they ID No. 707616 8/40 cannot be relied upon for any purpose whatsoever being unproved documents by not satisfying the conditions as laid down in the Indian Evidence Act.
26. Furthermore, even if the court for a moment considers the report of the Labour Inspector, who visited the management premises and prepared a report dated 13.07... (year not mentioned on the report), the same makes it clear that the said Labour Inspector had visited the premises only with respect to the cause of workmen Sanjay Sharma and Chotey Lal and not with respect to the present workman and hence, even the said report is of no help to the workman.
27. Accordingly, the court has come to the conclusion that the workman, has failed to prove the relationship of employer and employee between the parties.
28. Issue no.1 is accordingly, decided in favour of the management.
ISSUE No.2 : Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
29. Issue no.2, as framed, is not with respect to the present workman and hence, not discussed in this award.
ID No. 707616 9/40ISSUE No.3 : Relief in terms of reference.
30. In view of the outcome of issue no.1, the workman is held to be not entitled to any relief.
31. Reference answered accordingly.
32. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL)
On 12th April, 2018 PRESIDING OFFICER
LABOUR COURTV,
DWARKA COURTS/DELHI
VINAY
SINGHAL
Digitally signed by
VINAY SINGHAL
Date: 2018.05.01
14:59:16 +0530
ID No. 707616 10/40
IN THE COURT OF SH. VINAY SINGHAL, POLCV:
DWARKA COURTS: DELHI NEW ID NO : 707616 In the matter of :
Sh Raj Kumar S/O Sh. Daya Ram C/o Rashtriya General Mazdoor Union, F35, Karampura, New Delhi110015. ...workman Versus M/s Bright International, WZ10, Phase I, Om Vihar, Uttam Nagar, New Delhi110059 ....Management Date of Institution : 19.12.1998 Date of pronouncement : 12.04.2018 A W A R D Though a joint reference stand received with respect to eight workmen but on account of different facts and different evidence led with respect to the contesting parties, the court deems it fit to deal with the reference of each of the workmen by way of separate judgment.
Furthermore, out of the said eight workmen, the workmen namely Dinesh Tiwari, Sanjay, Samsul and Nand Kumar have not filed the claim and accordingly, a No Dispute Award dated 26.07.2005 stand passed against them by the Ld. Predecessor (though the names of the above said four workmen have been wrongly mentioned as Raj Kumar ID No. 707616 11/40 Luthra, Amar Nath, Vishnu Dutt and Raj Kumar in para no.16 of the said award but a perusal of the entire award and especially para no.5 of the said award makes it clear that the names mentioned in para no.16 is an inadvertent error containing the wrong names of the workmen against whom the said No Dispute Award was intended and accordingly, by invoking the provisions of Section 151 r/w Section 152 CPC, by virtue of the present order the said inadvertent error stand rectified and it is hereby ordered that in the award dated 26.07.2005, the names of the workmen against whom a No Dispute Award is passed shall be read as Dinesh Tiwari, Sanjay, Samsul and Nand Kumar).
Furthermore, with respect to the workmen Raj Kumar Luthra, Amar Nath, Vishnu Dutt and Raj Kumar, by virtue of the very same award dated 26.07.2005 reference was answered in their favour. However, on an application moved on behalf of the management, the award with respect to these four workmen stand set aside vide order dated 31.07.2006.
The Dy. Labour Commissioner, Govt of NCT, Delhi while exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute Act (hereinafter refer to as the Act) r/w notification No.F24(5322)/98 Lab/4088488 dated 07.12.1998 has sent the following reference to this court for adjudication : "Whether Sh. Raj Kumar has abandoned the service or his services have been terminated illegally and/or unjustifiably by the management;
ID No. 707616 12/40and if so, to what relief is he entitled and what directions are necessary in this respect"?
PARTA REFERENCE/CLAIM
1. After being called upon, the workman filed statement of claim.
2. As per the workman he was employed with the management for the last 06 years counting backward from 23.05.1998 i.e. since 24.05.1992 on the post of Packing In charge at a monthly salary of Rs. 2,000/.
3. It is claimed that the management closed the factory without any notice on 23.05.1998 but later on denied the said closure and also refused to take the workman on duty.
4. A demand letter dated 24.05.1998 claiming reinstatement and the allowances was sent by registered post but the same was returned unserved.
5. The workman filed a written complaint with the concerned Labour Commissioner who appointed a Labour Inspector to visit the management office but in vain, who filed his report dated 13.07.1998 in this respect.
6. The workman also claimed that since the date of his termination, he is unemployed.
PARTB MANAGEMENT'S STAND/REPLY
7. In the original WS, by virtue of preliminary objection, it is ID No. 707616 13/40 claimed by the management that they have not been supplied with the Annexure "A" containing the names of the workmen, as filed by workman along with statement of claim and accordingly, they filed the WS with respect to the workmen as appearing in the original reference order by virtue of which the present workman Raj Kumar is at Sl. No.6.
8. An amended WS also filed thereon but as the same has not changed the stand of the management with respect to the present workman, the same is not discussed herein.
9. The management denied that there was any relationship of employer and employee between the parties.
10. The management admitted that the Labour Inspector visited the premises and also noted down their names. It is also denied that the management ever closed down its factory or terminated the services of any workmen including the present workman.
PARTC ISSUES
11. From the pleading of the parties the following issues were framed vide order dated 10.10.2006 :
a) Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 ID No. 707616 14/40 and 7 of annexure 'A' of the statement of claim ? OPW
b) Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
c) Relief in terms of reference.
PARTD WORKMAN'S EVIDENCE
12. In support of his claim workman examined himself as WW4 and deposed along the lines of statement of claim and also proved on record the following document :
a) Ex WW1/1 Complaint to the Labour Inspector dated 25.05.1998.
b) ExWW1/2 Complaint dated 08.05.1998 addressed to the SHO PS Vikas Puri.
c) ExWW1/3 & 3A Complaints dated 08.05.1998 and 09.05.1998 addressed to the ALC.
d) ExWW1/4 Report of Labour Inspector.
e) ExWW1/5 Demand notice dated 24.05.1998.
f) ExWW1/6 Returned envelope.
g) ExWW1/7 to 1/20 Employment proof of the workman.
ID No. 707616 15/40PARTE MANAGEMENT EVIDENCE
13. As far as the management is concerned, as it has already taken a stand to the effect that the present workman was never their employee, though it has led the evidence with respect to other workmen qua whom separate award is being passed, the said evidence having no relevance qua the present workman is not being discussed.
14. Furthermore, the management witness MW1 was also not cross examined by the workman by even putting a suggestion that the present workman was their employee.
PARTF FINDINGS/CONCLUSION
15. After considering the claim, reply, document and the evidence led on record, the issue wise decision of the court is as under : ISSUE No.1 : Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 and 7 of annexure 'A' of the statement of claim ? OPW
16. As far as the question of proving the relationship of employer and employee between the parties is concerned, when the same is being denied by the management, the law is very well settled by the Hon'ble Supreme Court of India in the matter of ID No. 707616 16/40 "Workmen of Niligiri Coop. Mkt Society Ltd. Vs State of Tamilnadu (2004) 3 SCC 514" by holding that the onus of proving the relationship of employer employee when the same is denied by the management is always upon the workman.
17. The said judgment is also upheld in a catena of judgments and followed by various High Courts including Delhi High Court like in the matter of Gopal Vs BSNL LPA No. 408/2013 decided on 03.07.2014.
18. Now in the present case also the management has denied the said relationship between the parties and in such a situation the present issue was framed calling upon the workman to prove the said relationship.
19. Before proceeding further, it is also pertinent to mention that the said issues which were framed though contain the wording "annexure 'A' of the statement of claim" but in fact they refer to the serial number as per the reference order and be read for all practical purpose as such as they also stand corrected under the provisions of Section 151 and 152 of CPC.
20. The documents relied upon by the workman as Ex.WW1/1 to Ex.WW1/20 are in fact of no relevance firstly on the ground that they are photostat copies and despite being marked as exhibit, stand not proved as per the provisions of Indian Evidence Act as neither their originals were shown to be in existence nor any ID No. 707616 17/40 secondary evidence qua them stand led by the workman coupled with the fact that even otherwise as far as the documents Ex.WW1/7 to 1/11 and Ex.WW1/13 to 1/18 are concerned, the same having been relied upon by the workman on the ground that they bear his signatures, in the opinion of the court instead of helping the cause of the workman goes against him. As already noted above the said documents are photostat copies and despite being marked as exhibit, stand not proved coupled with the fact that even otherwise there is no averment on the part of the workman that the said signatures in deed belong to him or in any case make him an employee of the management and hence, they cannot be relied upon for any purpose whatsoever being unproved documents by not satisfying the conditions as laid down in the Indian Evidence Act.
21. Furthermore, even if the court for a moment considers the report of the Labour Inspector, who visited the management premises and prepared a report dated 13.07... (year not mentioned on the report), the same makes it clear that the said Labour Inspector had visited the premises only with respect to the cause of workmen Sanjay Sharma and Chotey Lal and not with respect to the present workman and hence, even the said report is of no help to the workman.
22. Accordingly, the court has come to the conclusion that the workman, has failed to prove the relationship of employer and ID No. 707616 18/40 employee between the parties.
23. Issue no.1 is accordingly, decided in favour of the management.
ISSUE No.2 : Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
24. Issue no.2, as framed, is not with respect to the present workman and hence, not discussed in this award.
ISSUE No.3 : Relief in terms of reference.
25. In view of the outcome of issue no.1, the workman is held to be not entitled to any relief.
26. Reference answered accordingly.
27. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL)
On 12th April, 2018 PRESIDING OFFICER
LABOUR COURTV,
DWARKA COURTS/DELHI
VINAY
SINGHAL
Digitally signed by
ID No. 707616 VINAY SINGHAL 19/40
Date: 2018.05.01
15:00:32 +0530
IN THE COURT OF SH. VINAY SINGHAL, POLCV:
DWARKA COURTS: DELHI NEW ID NO : 707616 In the matter of :
Sh Amar Nath S/O Sh. Shomku Ram C/o Rashtriya General Mazdoor Union, F35, Karampura, New Delhi110015. ...workman Versus M/s Bright International, WZ10, Phase I, Om Vihar, Uttam Nagar, New Delhi110059 ....Management Date of Institution : 19.12.1998 Date of pronouncement : 12.04.2018 A W A R D Though a joint reference stand received with respect to eight workmen but on account of different facts and different evidence led with respect to the contesting parties, the court deems it fit to deal with the reference of each of the workmen by way of separate judgment.
Furthermore, out of the said eight workmen, the workmen namely Dinesh Tiwari, Sanjay, Samsul and Nand Kumar have not filed the claim and accordingly, a No Dispute Award dated 26.07.2005 stand passed against them by the Ld. Predecessor (though the names of the ID No. 707616 20/40 above said four workmen have been wrongly mentioned as Raj Kumar Luthra, Amar Nath, Vishnu Dutt and Raj Kumar in para no.16 of the said award but a perusal of the entire award and especially para no.5 of the said award makes it clear that the names mentioned in para no.16 is an inadvertent error containing the wrong names of the workmen against whom the said No Dispute Award was intended and accordingly, by invoking the provisions of Section 151 r/w Section 152 CPC, by virtue of the present order the said inadvertent error stand rectified and it is hereby ordered that in the award dated 26.07.2005, the names of the workmen against whom a No Dispute Award is passed shall be read as Dinesh Tiwari, Sanjay, Samsul and Nand Kumar).
Furthermore, with respect to the workman Raj Kumar Luthra, Amar Nath, Vishnu Dutt and Raj Kumar, by virtue of the very same award dated 26.07.2005 reference was answered in their favour. However, on an application moved on behalf of the management, the award with respect to these four workmen stand set aside vide order dated 31.07.2006.
The Dy. Labour Commissioner, Govt of NCT, Delhi while exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute Act (hereinafter refer to as the Act) r/w notification No.F24(5322)/98 Lab/4088488 dated 07.12.1998 has sent the following reference to this court for adjudication : ID No. 707616 21/40 "Whether Sh. Amar Nath has abandoned the service or his services have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect"?
PARTA REFERENCE/CLAIM
1. After being called upon, the workman filed statement of claim.
2. As per the workman he was employed with the management for the last 10 years counting backward from 23.05.1998 i.e. since 24.05.1988 on the post of Store Keeper at a monthly salary of Rs. 2,700/.
3. It is claimed that the management closed the factory without any notice on 23.05.1998 but later on denied the said closure and also refused to take the workman on duty.
4. A demand letter dated 24.05.1998 claiming reinstatement and the allowances was sent by registered post but the same was returned unserved.
5. The workman filed a written complaint with the concerned Labour Commissioner who appointed a Labour Inspector to visit the management office but in vain, who filed his report dated 13.07.1998 in this respect.
6. The workman also claimed that since the date of his termination, he is unemployed.
ID No. 707616 22/40PARTB MANAGEMENT'S STAND/REPLY
7. In the original WS, by virtue of preliminary objection, it is claimed by the management that they have not been supplied with the Annexure "A" containing the names of the workmen, as filed by workman along with statement of claim and accordingly, they filed the WS with respect to the workmen as appearing in the original reference order by virtue of which the present workman Amar Nath is at Sl. No.2.
8. In the original WS, it is stated by the management that the present workman had left the services after settling his account.
9. An amended WS also filed thereon but as the same has not changed the stand of the management with respect to the present workman, the same is not discussed herein.
10. The management denied that there was any relationship of employer and employee between the parties.
11. The management admitted that the Labour Inspector visited the premises and also noted down their names. It is also denied that the management ever closed down its factory or terminated the services of any workmen including the present workman.
PARTC ISSUES
12. From the pleading of the parties the following issues were framed vide order dated 10.10.2006 : ID No. 707616 23/40
a) Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 and 7 of annexure 'A' of the statement of claim ? OPW
b) Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
c) Relief in terms of reference.
PARTD WORKMAN'S EVIDENCE
13. In support of his claim workman examined himself as WW2 and deposed along the lines of statement of claim and also proved on record the following document :
a) Ex WW1/1 Complaint to the Labour Inspector dated 25.05.1998.
b) ExWW1/2 Complaint dated 08.05.1998 addressed to the SHO PS Vikas Puri.
c) ExWW1/3 & 3A Complaints dated 08.05.1998 and 09.05.1998 addressed to the ALC.
d) ExWW1/4 Report of Labour Inspector.
e) ExWW1/5 Demand notice dated 24.05.1998.
f) ExWW1/6 Returned envelope.
g) ExWW1/7 to 1/20 Employment proof of the workman.
h) ExWW2/X1Copy of EPF.
ID No. 707616 24/40i) ExWW2/X2Copy of ESI card.
14. During the course of cross examination, he admitted that as far as the documents relied upon by him as Ex.WW1/1 to Ex.WW1/20 are concerned, he is not the executor of the same and also the fact that originals of the same neither shown to the court nor placed on record.
15. During the course of cross examination, it also came on record that as per his averment, the workman was earlier employed with M/s DCM Mills which was closed in 1998 and thereafter he was in Export Unit.
16. He also claimed that while being under the employment of the present management he was issued an ESI card and till the last day of his employment with the management he obtained the benefit from ESI as per the said ESI card issued by the present management.
17. Accordingly, he was directed to produce on record the said ESI card which he did produce on 31.10.2008 and proved the same on record as Ex.WW2/X2.
18. The said ESI card Ex.WW2/X2 bears the ESI number of the employer as of 1119503.
19. Accordingly, a question was put to the said witness as to whom the said code belongs to which he replied that the same belong to DCM.
20. He also admitted that he was availing the benefit under ESIC on ID No. 707616 25/40 the basis of this very ESI card Ex.WW2/X2.
PARTE MANAGEMENT EVIDENCE
21. As far as the management is concerned, it examined its official Sh. Anil Kumar as MW1 who again deposed on the lines of the WS to the effect that the present workman has left after settling his dues.
22. He has sought to prove on record the records of the ESI and EPF but as the same already stand weeded out as per rule, he proved on record the letters issued by the said department certifying the weeding out of the record.
23. However, he also proved on record the copy of Form 9 as well as Form 6A i.e. the EPF returns in order to prove that as far as the present workman was concerned, he has left the services on 24.09.1991 after settling his PF amount in full and also withdrawn the same. He also filed the return for the subsequent year after 24.09.1991 i.e. for the year 199293 containing the details of the workmen qua whom the management had deducted the EPF contribution from their wages as well as paid contribution on their part which clearly shows that the name of the workman is not mentioned therein.
24. Neither any question nor any suggestion has been put to the said MW1 to disprove the credibility of the said Form 9 and Form 6A Ex.MW1/2 to Ex.MW1/5 respectively.
ID No. 707616 26/40PARTF FINDINGS/CONCLUSION
25. After considering the claim, reply, document and the evidence led on record, the issue wise decision of the court is as under : ISSUE No.1 : Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 and 7 of annexure 'A' of the statement of claim ? OPW
26. Before proceeding further, it is also pertinent to mention that the said issues which were framed though contain the wording "annexure 'A' of the statement of claim" but in fact they refer to the serial number as per the reference order and be read for all practical purpose as such as they also stand corrected under the provisions of Section 151 and 152 of CPC.
27. As the issue stand wrongly framed, as far as issue no.1 is concerned the same does not pertain to the present workman and accordingly, there is no need to decided this issue as far as the present workman is concerned.
ISSUE No.2 : Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
28. For the purpose of deciding this issue, the workman has to prove that he was an employee of the management as on the alleged ID No. 707616 27/40 date of termination i.e. 23.05.1998 in view of the stand taken by the management that as on that date he had already left the services after settling his account as far back as in 1991.
29. As far as the question of proving the relationship of employer and employee between the parties is concerned, when the same is being denied by the management, the law is very well settled by the Hon'ble Supreme Court of India in the matter of "Workmen of Niligiri Coop. Mkt Society Ltd. Vs State of Tamilnadu (2004) 3 SCC 514" by holding that the onus of proving the relationship of employer employee when the same is denied by the management is always upon the workman.
30. The said judgment is also upheld in a catena of judgment and followed by various High Courts including Delhi High Court like in the matter of Gopal Vs BSNL LPA No. 408/2013 decided on 03.07.2014.
31. The documents relied upon by the workman as Ex.WW1/1 to Ex.WW1/20 are in fact of no relevance firstly on the ground that they are photostat copies and despite being marked as exhibit, stand not proved as per the provisions of Indian Evidence Act as neither their originals were shown to be in existence nor any secondary evidence qua them stand led by the workman coupled with the fact that even otherwise as far as the documents Ex.WW1/2 to 1/4 and Ex.WW1/7 to 1/20 are concerned, the ID No. 707616 28/40 same are not in favour of the present workman and hence, they cannot be relied upon for any purpose whatsoever being unproved documents by not satisfying the conditions as laid down in the Indian Evidence Act.
32. Furthermore, even if the court for a moment considers the report of the Labour Inspector who visited the management premises and prepared a report dated 13.07.... (year not mentioned on the report), the same makes it clear that the said Labour Inspector had visited the premises only with respect to the cause of workmen Sanjay Sharma and Chotey Lal and not with respect to the present workman and hence, even the said report is of no help to the workman.
33. Even in the course of cross examination, the workman who firstly deposed that as an employee of the present management he was issued ESI card and availed ESI facilities during his employment on the basis of said ESI card, when called upon to produce the said ESI card in order to support his deposition, he produced the same as Ex.WW2/X2. However, the said Ex.WW2/X2 bears the employer code number as 1119503 and on being specifically questioned, he admitted that the same belong to his employer DCM and not the present management.
34. In these circumstances, in view of own admission on the part of the workman it stand proved that as on the date of alleged termination he was not an employee of the present management ID No. 707616 29/40 but was an employee of DCM.
35. Furthermore, in view of unrebutted testimony of MW1 whereby he has proved Ex.MW1/2 to Ex.MW1/5 showing that present workman has left the services on 24.09.1991 after settling his dues, the management is able to prove its stand.
36. Accordingly, the court has come to the conclusion that the workman, has failed to prove the relationship of employer and employee between the parties and in fact has left the services in 1991 after settling his accounts.
37. Issue no.2 is accordingly decided in favour of the management.
ISSUE No.3 : Relief in terms of reference.
38. In view of the outcome of issue no.2, the workman is held to be not entitled to any relief.
39. Reference answered accordingly.
40. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL)
On 12th April, 2018 PRESIDING OFFICER
LABOUR COURTV,
DWARKA COURTS/DELHI
VINAY
ID No. 707616 30/40
SINGHAL
Digitally signed by
VINAY SINGHAL
Date: 2018.05.01
15:00:52 +0530
IN THE COURT OF SH. VINAY SINGHAL, POLCV:
DWARKA COURTS: DELHI NEW ID NO : 707616 In the matter of :
Sh Vishnu Dutt S/O Sh. Suraj Bhan C/o Rashtriya General Mazdoor Union, F35, Karampura, New Delhi110015. ...workman Versus M/s Bright International, WZ10, Phase I, Om Vihar, Uttam Nagar, New Delhi110059 ....Management Date of Institution : 19.12.1998 Date of pronouncement : 12.04.2018 A W A R D Though a joint reference stand received with respect to eight workmen but on account of different facts and different evidence led with respect to the contesting parties, the court deems it fit to deal with the reference of each of the workmen by way of separate judgment.
Furthermore, out of the said eight workmen, the workmen namely Dinesh Tiwari, Sanjay, Samsul and Nand Kumar have not filed the claim and accordingly, a No Dispute Award dated 26.07.2005 stand passed against them by the Ld. Predecessor (though the names of the ID No. 707616 31/40 above said four workmen have been wrongly mentioned as Raj Kumar Luthra, Amar Nath, Vishnu Dutt and Raj Kumar in para no.16 of the said award but a perusal of the entire award and especially para no.5 of the said award makes it clear that the names mentioned in para no.16 is an inadvertent error containing the wrong names of the workmen against whom the said No Dispute Award was intended and accordingly, by invoking the provisions of Section 151 r/w Section 152 CPC, by virtue of the present order the said inadvertent error stand rectified and it is hereby ordered that in the award dated 26.07.2005, the names of the workmen against whom a No Dispute Award is passed shall be read as Dinesh Tiwari, Sanjay, Samsul and Nand Kumar).
Furthermore, with respect to the workman Raj Kumar Luthra, Amar Nath, Vishnu Dutt and Raj Kumar, by virtue of the very same award dated 26.07.2005 reference was answered in their favour. However, on an application moved on behalf of the management, the award with respect to these four workmen stand set aside vide order dated 31.07.2006.
The Dy. Labour Commissioner, Govt of NCT, Delhi while exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute Act (hereinafter refer to as the Act) r/w notification No.F24(5322)/98 Lab/4088488 dated 07.12.1998 has sent the following reference to this court for adjudication : ID No. 707616 32/40 "Whether Sh. Vishnu Dutt has abandoned the service or his services have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect"?
PARTA REFERENCE/CLAIM
1. After being called upon, the workman filed statement of claim.
2. As per the workman he was employed with the management for the last 06 years counting backward from 23.05.1998 i.e. since 24.05.1992 on the post of Overseas Checker at a monthly salary of Rs. 2,000/.
3. It is claimed that the management closed the factory without any notice on 23.05.1998 but later on denied the said closure and also refused to take the workman on duty.
4. A demand letter dated 24.05.1998 claiming reinstatement and the allowances was sent by registered post but the same was returned unserved.
5. The workman filed a written complaint with the concerned Labour Commissioner who appointed a Labour Inspector to visit the management office but in vain, who filed his report dated 13.07.1998 in this respect.
6. The workman also claimed that since the date of his termination, he is unemployed.
ID No. 707616 33/40PARTB MANAGEMENT'S STAND/REPLY
7. In the original WS, by virtue of preliminary objection, it is claimed by the management that they have not been supplied with the Annexure "A" containing the names of the workmen, as filed by workman along with statement of claim and accordingly, they filed the WS with respect to the workmen as appearing in the original reference order by virtue of which the present workman Vishnu Dutt is at Sl. No.3.
8. In the original WS, it is stated by the management that there was no relationship of employer and employee between the parties.
9. An amended WS filed thereon and by virtue of the same the said plea was changed to the effect that there was no relationship of employer and employee between the parties after May, 1996.
10. The management admitted that the Labour Inspector visited the premises and also noted down their names. It is also denied that the management ever closed down its factory or terminated the services of any workmen including the present workman.
PARTC ISSUES
11. From the pleading of the parties the following issues were framed vide order dated 10.10.2006 :
a) Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 ID No. 707616 34/40 and 7 of annexure 'A' of the statement of claim ? OPW
b) Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
c) Relief in terms of reference.
PARTD WORKMAN'S EVIDENCE
12. In support of his claim workman examined himself as WW3 and deposed along the lines of statement of claim and also proved on record the following document :
a) Ex WW1/1 Complaint to the Labour Inspector dated 25.05.1998.
b) ExWW1/2 Complaint dated 08.05.1998 addressed to the SHO PS Vikas Puri.
c) ExWW1/3 & 3A Complaints dated 08.05.1998 and 09.05.1998 addressed to the ALC.
d) ExWW1/4 Report of Labour Inspector.
e) ExWW1/5 Demand notice dated 24.05.1998.
f) ExWW1/6 Returned envelope.
g) ExWW1/7 to 1/20 Employment proof of the workman.
13. During the course of cross examination, he admitted that as far as the documents relied upon by him as Ex.WW1/1 to Ex.WW1/20 are concerned, he is not the executor of the same and also the fact that originals of the same neither shown to the ID No. 707616 35/40 court nor placed on record.
PARTE MANAGEMENT EVIDENCE
14. As far as the management is concerned, it examined its official Sh. Anil Kumar as MW1 who again deposed on the lines of the WS to the effect that the present workman has left after settling his dues.
15. He has sought to prove on record the records of the ESI and EPF but as the same already stand weeded out as per rule, he proved on record the letters issued by the said department certifying the weeding out of the record.
16. However, he also proved on record the copy of Form 9 as well as Form 6A i.e. the EPF returns in order to prove that as far as the present workman was concerned, he has left the services after May, 1996 after settling his PF amount in full and also withdrawn the same. He also filed the returns for the year 1996 97 and 199798 containing the details of the workmen qua whom the management had deducted the EPF contribution from their wages as well as paid contribution on their part which clearly shows that the name of the workman is not mentioned therein.
17. Neither any question nor any suggestion has been put to the said MW1 to disprove the credibility of the said Form 9 and Form 6A Ex.MW1/8 to Ex.MW1/11 respectively.
ID No. 707616 36/40PARTF FINDINGS/CONCLUSION
18. After considering the claim, reply, document and the evidence led on record, the issue wise decision of the court is as under : ISSUE No.1 : Whether there is any relationship of employer and employee between the claimants appearing at Sl.No. 1,3,4,5 and 7 of annexure 'A' of the statement of claim ? OPW
19. Before proceeding further, it is also pertinent to mention that the said issues which were framed though contain the wording "annexure 'A' of the statement of claim" but in fact they refer to the serial number as per the reference order and be read for all practical purpose as such as they also stand corrected under the provisions of Section 151 and 152 of CPC.
20. As the issue stand wrongly framed, as far as issue no.1 is concerned the same does not pertain to the present workman and accordingly, there is no need to decided this issue as far as the present workman is concerned.
ISSUE No.2 : Whether the claimants appearing at Sl. no.2,6 and 8 of annexure 'A' of the statement of claim settled their account fully and finally and left their job thereafter ? OPM
21. Furthermore, in view of the fact that the management was allowed to amend the WS thereby it has changed its stand qua ID No. 707616 37/40 the present workman, the issue with respect to the present workman should have been changed, but was not changed and accordingly, in these circumstances as far as the present workman was concerned, in view of the stand taken by the management in the amended WS, he is covered by issue no.2 as framed.
22. For the purpose of deciding this issue, the workman has to prove that he was an employee of the management as on the alleged date of termination i.e. 23.05.1998 in view of the stand taken by the management that as on that date he had already left the services after settling his account as far back as in May, 1996.
23. As far as the question of proving the relationship of employer and employee between the parties is concerned, when the same is being denied by the management, the law is very well settled by the Hon'ble Supreme Court of India in the matter of "Workmen of Niligiri Coop. Mkt Society Ltd. Vs State of Tamilnadu (2004) 3 SCC 514" by holding that the onus of proving the relationship of employer employee when the same is denied by the management is always upon the workman.
24. The said judgment is also upheld in a catena of judgment and followed by various High Courts including Delhi High Court like in the matter of Gopal Vs BSNL LPA No. 408/2013 decided on 03.07.2014.
ID No. 707616 38/4025. The documents relied upon by the workman as Ex.WW1/1 to Ex.WW1/20 are in fact of no relevance firstly on the ground that they are photostat copies and despite being marked as exhibit, stand not proved as per the provisions of Indian Evidence Act as neither their originals were shown to be in existence nor any secondary evidence qua them stand led by the workman coupled with the fact that even otherwise as far as the documents Ex.WW1/2 to 1/4 and Ex.WW1/7 to 1/20 are concerned, the same are not in favour of the present workman and hence, they cannot be relied upon for any purpose whatsoever being unproved documents by not satisfying the conditions as laid down in the Indian Evidence Act.
26. Furthermore, even if the court for a moment considers the report of the Labour Inspector who visited the management premises and prepared a report dated 13.07.... (year not mentioned on the report), the same makes it clear that the said Labour Inspector had visited the premises only with respect to the cause of workmen Sanjay Sharma and Chotey Lal and not with respect to the present workman and hence, even the said report is of no help to the workman.
27. The workman has failed to put any question to the MW1 either by putting any suggestion challenging the veracity of Ex.MW1/8 to Ex.MW1/11.
28. As the said Ex.MW1/8 to Ex.MW1/11, which clearly show that ID No. 707616 39/40 the present workman has left the services after May, 1996 after settling his account and also withdrawing his PF coupled with the fact that his name does not figure in the subsequent return of EPF submitted by the management to the EPF department, seen in the light of the fact that the workman has failed to lead any evidence to prove that he was an employee of the management as on the date of alleged termination i.e. 23.05.1998, the court has come to the conclusion that as on the date of alleged termination the workman was not an employee of the management and he has already left the services of the management after May, 1996.
29. Issue no.2 is accordingly, decided in favour of the management.
ISSUE No.3 : Relief in terms of reference.
30. In view of the outcome of issue no.2, the workman is held to be not entitled to any relief.
31. Reference answered accordingly.
32. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL)
On 12th April, 2018 PRESIDING OFFICER
LABOUR COURTV,
DWARKA COURTS/DELHI
ID No. 707616 40/40
VINAY
SINGHAL
Digitally signed by
VINAY SINGHAL
Date: 2018.05.01
15:01:09 +0530